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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton
No. 2005-809

JOHN MILLIKEN & a.

v.

DARTMOUTH-HITCHCOCK CLINIC & a.

Argued: November 8, 2006

Opinion Issued: December 28, 2006

Van Dorn and Curtiss, PLLC, of Orford (Robin C. Curtiss and Edward M.
Van Dorn Jr. on the brief, and Mr. Van Dorn orally), for the plaintiffs.

Orr & Reno, P.A., of Concord (Ronald L. Snow and Emily Gray Rice on
the brief, and Mr. Snow orally), for the defendants.

HICKS, J. The plaintiffs, John Milliken, individually, and Dianne

Milliken, individually, and as next friend of their young son, appeal certain
evidentiary rulings of the Superior Court (Houran, J.) made before and during
the trial of this medical malpractice case. Specifically, they allege error with
regard to the admission of testimony from three of the defendants’ expert
witnesses. We affirm.

The jury could have found the following. Ms. Milliken was admitted to
defendant Dartmouth-Hitchcock Medical Center (DMHC) on March 4, 2000.
She was twenty-eight weeks pregnant and suffering from premature preterm
rupture of uterine membranes. Milliken remained hospitalized for the next
four weeks at DMHC. On March 29, 2000, Milliken’s abdomen became
progressively more tender, and Dr. Michele Lauria, a maternal fetal medicine
specialist, ordered an amniocentesis which revealed fetal lung maturity and
chorioamnionitis, an intrauterine infection. Based upon the amniocentesis
results, Lauria ordered that Milliken be given pitocin to induce labor. Lauria’s
shift then ended and she left the hospital. Milliken’s care was assumed by
another physician.

Milliken was monitored throughout the night of March 29, 2000, and
despite the pitocin, she never went into active labor. At 7:00 a.m. on March
30, 2000, an emergency caesarean section was recommended. The surgery
revealed that the baby’s head was constricted by the lower uterus, a rare
condition known as Bandl’s Ring. The baby was delivered suffering from a
deformed and bruised skull, as well as severe brain damage.

The plaintiffs brought suit on March 28, 2003, against DMHC and
several physicians, including Lauria, involved in the care of Milliken and her
son. Lauria was subsequently dismissed as a defendant. The plaintiffs’
complaint alleged, inter alia, failure properly to monitor for infection, failure to
recognize a lack of progress in labor, and failure to timely perform a caesarean
section. After a jury trial, a verdict was returned for the defendants.

The issues raised on appeal are whether the trial court erred by allowing
Dr. Mary D’Alton and Lauria to testify regarding the timing and cause of the
injury and by allowing Dr. Robert Zimmerman, the defendant’s expert
radiologist, to testify regarding the timing of the injury. We address the
testimonies of each witness in turn, applying the correct standard of review:
the trial court retains the discretion to admit expert testimony, In the Matter of
Letendre & Letendre, 149 N.H. 31, 37 (2002), and its decision will be reviewed
under an unsustainable exercise of discretion standard, McLaughlin v. Fisher
Engineering, 150 N.H. 195, 197 (2003). To show that the trial court’s decision
was not sustainable, the appealing party must show that the ruling was
“clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation
omitted).

I. Testimony of Mary D’Alton, M.D.

The plaintiffs first argue that D’Alton’s testimony on the cause and
timing of the baby’s injury was inadmissible because: (1) her opinions on these
issues were not included in her report in violation of RSA 516:29-b, II (Supp.
2006); and (2) she was not qualified to give an opinion on these issues. The
defendants argue that the plaintiffs have not preserved these arguments for our
review. Alternatively, the defendants argue that even if these issues were
preserved, the trial court did not engage in an unsustainable exercise of

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discretion. As we will not review any issue that was not raised below, State v.
Blackmer, 149 N.H. 47, 48 (2003), we first address the preservation issue.

Before trial, the plaintiffs filed a motion in limine to preclude D’Alton

from testifying about the timing of the baby’s injury, claiming that it lacked the
requisite indicia of reliability required by New Hampshire Rule of Evidence 702
(Rule 702). In denying this motion, the court reviewed D’Alton’s deposition and
held that her opinion was sufficiently reliable on the issue of timing. At trial,
the plaintiffs objected only once during D’Alton’s testimony regarding an issue
that they have not appealed. The record does not reflect that any post-trial
motions were filed.

“Generally, a [party] must make a specific and contemporaneous

objection during trial to preserve an issue for appellate review.” Klar v.
Mitoulas, 145 N.H. 483, 488 (2000) (quotation omitted). The burden is on the
appealing party to demonstrate that the issues on appeal were raised before
the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). This
allows the trial court to consider errors as they occur and remedy them as
necessary. State v. Ayer, 150 N.H. 14, 21 (2003), cert. denied, 541 U.S. 942
(2004). However,

[a] motion in limine is sufficient to preserve an issue

for appeal without an objection at trial if the trial court
definitively rules on the issue prior to trial. A ruling
on a motion in limine is definitive when the court is
sufficiently alerted to the issue and the court’s written
order demonstrates that it considered the issue and
ruled on it.

Klar, 145 N.H. at 488-89 (quotation omitted).

The defendants argue that the plaintiffs’ motion in limine “is insufficient
as a matter of law to preserve the issues . . . on appeal concerning D’Alton’s
testimony” because “[t]he sole issue raised in plaintiffs’ motion concerned the
unreliability of D’Alton’s opinion on the timing of [the baby’s] injury” and
therefore no definitive pretrial ruling on the plaintiffs’ appeal issues was made
by the trial court. We agree that the issues regarding D’Alton’s report and her
qualifications to testify on the cause of the injury were not preserved by the
plaintiffs’ motion in limine. However, we hold that the motion did preserve the
issue regarding D’Alton’s qualifications to testify on the timing of the injury.

The plaintiff’s motion in limine argued only that D’Alton’s testimony

regarding timing would be unreliable. The motion did not argue that the
testimony was inadmissible because the defendants failed to comply with the
disclosure requirements of RSA 516:29-b (Supp. 2006) or Superior Court Rule

3
35(f). The trial court’s order denying the plaintiffs’ motion specifically focused
upon the issue of reliability and did not discuss disclosure issues. Likewise,
neither the plaintiffs’ motion nor the court’s order addressed D’Alton’s
testimony about the cause of the injury. Accordingly, we hold that the trial
court was not sufficiently alerted to these issues and therefore they were not
preserved by the motion in limine. As no objections on these issues were made
at trial, we find that they are not preserved for our review.

In contrast, the plaintiffs’ motion in limine was sufficient to preserve

their argument that D’Alton was not qualified to offer an opinion regarding
timing as required by Rule 702 and RSA 516:29-a (Supp. 2006). The plaintiffs’
motion alleged that D’Alton’s testimony was unreliable, in part, because she
was only the “[d]efendants’ liability expert” who planned to “defer to the . . .
pediatric neurologist on the timing of [the] injuries.” In its order, the trial court
cited to Rule 702 and RSA 516:29-a, which deal with expert qualifications, and
ruled: “that [D’Alton] defers to pediatric neurologists on the exact timing of
[the] injury does not undercut her qualification to offer the opinion at issue
here.” (Emphasis added.) Accordingly, as this issue was preserved for our
review, we address it.

The plaintiffs argue that D’Alton is not qualified to offer an opinion on

the timing of the injury because: (1) her specialty is maternal fetal medicine;
(2) she has never seen a Bandl’s Ring in a premature infant; and (3) she
admitted that she would defer to a pediatric neurologist or radiologist on the
timing. We disagree.

Under Rule of Evidence 702, a witness qualified as an

expert by knowledge, skill, experience, training, or
education, may testify thereto. In deciding whether to
qualify a witness as an expert, the trial judge must
conduct an adequate investigation of the expert’s
qualifications. Because the trial judge has the
opportunity to hear and observe the witness, the
decision whether a witness qualifies as an expert is
within the trial judge’s discretion.

Hodgdon v. Frisbie Mem. Hosp., 147 N.H. 286, 289 (2001) (quotation, citation,
and ellipsis omitted). RSA 516:29-a provides, in pertinent part:

A witness shall not be allowed to offer expert

testimony unless the court finds:
(a) Such testimony is based upon sufficient facts
or data;
(b) Such testimony is the product of reliable
principles and methods; and

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 (c) The witness has applied the principles and
methods reliably to the facts of the case.

RSA 516:29-a, I.

D’Alton’s background includes many years in the field of obstetrics and

gynecology. She is a supervisor at her hospital, New York Presbyterian
Hospital, and the author of numerous medical chapters, books, and abstracts.
In her deposition, D’Alton gave several reasons to support her opinion on
timing, referring to her experience in delivering “many, many babies in [her]
entire practice and witness[ing] them and see[ing] the results.” Having this
information before it, the trial court reasonably could have found that she was
qualified to give her opinion regarding the injury. “The lack of specialization in
a particular medical field does not automatically disqualify a doctor from
testifying as an expert in that field.” Hodgdon, 147 N.H. at 289. Accordingly,
we cannot find that the trial court committed an unsustainable exercise of
discretion in permitting D’Alton to testify regarding the cause and timing of the
injury.

II. Testimony of Michele Lauria, M.D.

The plaintiffs next assert that Lauria should not have been permitted to
testify regarding the causation and timing of the baby’s injury because: (1) the
defendants did not disclose her as an expert as required by RSA 516:29-b and
Superior Court Rule 35(f); and (2) Lauria was not qualified to give such
opinions. The defendants again argue that these issues were not preserved for
appeal. We agree.

Before trial, the plaintiffs filed a broad motion in limine “to exclude any
opinion testimony from physicians testifying for the defense for whom no expert
opinions have been disclosed.” The court did not directly rule on the plaintiffs’
motion, finding that the issue was not ripe. The record does not reveal that the
motion was renewed.

Applying the same rule regarding preservation and motions in limine

from Klar, discussed above, we hold that the plaintiffs’ motion in limine was
insufficient to preserve the issue regarding disclosure of Lauria as an expert.
The court made no definitive ruling on the motion and Lauria was not even
specifically mentioned in the motion. Since the motion in limine was
insufficient to preserve this issue, a timely objection at trial was required. Klar,
145 N.H. at 488-89.

At trial, Lauria, who had previously been a party defendant, was called
as the plaintiffs’ witness. During examination by the plaintiffs’ counsel, Lauria

5
was asked the following question: “And certainly this baby was not injured
when you left to go home, or you . . . wouldn’t have gone home, isn’t that fair?”
She responded: “Oh, sir, I . . . think that [the] Bandl’s ring was there for a very
long time in that if you look at what happened to the skin on his head, I think
easily [it] could have happened before I left that evening.” This testimony
concerning the timing of the injury continued for some time without objection.

On appeal, the plaintiffs argue that Lauria’s responses were not

prompted by the plaintiffs’ counsel and did not respond to the questions asked.
However, the plaintiffs’ counsel submitted no objection, and did not request a
bench conference or voir dire at the time of this testimony. The first objection
to Lauria’s testimony came during the defendants’ cross-examination. An
objection made later in the witness’s testimony, during cross-examination by
the defense, does not preserve this issue on appeal. Cf. State v. LaBranche,
118 N.H. 176, 179 (1978) (“The fact that defense counsel raised the objection
and requested a mistrial in each instance after a few additional questions and
answers had ensued is of no consequence.” (emphasis added)).

We also hold that the issue regarding Lauria’s qualifications to offer an

opinion on causation and timing was not preserved. The record does not
reflect that a motion in limine was ever filed on this issue and we reiterate our
above discussion regarding the lack of an objection to Lauria’s testimony on
causation and timing during examination by the plaintiffs’ counsel.

III. Testimony of Robert Zimmerman, M.D.

The plaintiffs next argue that portions of Zimmerman’s testimony should

have been excluded because: (1) his testimony was not the product of reliable
principles and methods; and (2) the exhibits used during his testimony were
not disclosed to the plaintiffs as required by RSA 516:29-b. The defendants
argue that these issues were not preserved below. Alternatively, the
defendants argue that the plaintiffs waived their right to contest Zimmerman’s
testimony on the basis of unreliable principles and methods because the
plaintiffs’ counsel conceded this issue below.

On August 31, 2005, and October 4, 2005, the plaintiffs filed motions in
limine to preclude Zimmerman from testifying regarding the timing of the
baby’s injury. The trial court did not address these motions until the plaintiffs’
objection during Zimmerman’s testimony. The trial court overruled the
objection and permitted the testimony, holding that although Bandl’s Ring was
outside Zimmerman’s area of expertise, “[t]hat doesn’t mean he can’t testify to
other circumstances concerning timing, including the timing of edema . . . .”
This issue was properly preserved through the motions in limine and the
objection at trial.

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 On appeal, the plaintiffs argue that Zimmerman’s testimony was the
product of unreliable principles and methods; they allege inconsistencies in his
report and deposition testimony regarding timing, and point to statements
made by Zimmerman that his opinion was “based on experience.” The
defendants counter that the plaintiffs waived this argument by conceding
before the trial court that Zimmerman was qualified to render his opinion on
timing. We agree. The issue raised in the plaintiffs’ notice of appeal is:
“Whether the trial court erred in allowing Dr. Robert Zimmerman to testify
about the timing of [the baby’s] injury based on the edema found on the CT
scan.” At a bench conference during Zimmerman’s testimony, plaintiffs’
counsel stated: “He’s very capable of looking at edema and timing it, and that’s
very legitimate, but when we go on to these other areas, it’s in the area of
neurology, that’s different.” This statement concedes the very issue that the
plaintiffs now appeal. The plaintiffs argue that this statement made by counsel
during trial does not bind them. We disagree. Admissions made by counsel
during litigation are binding upon the client unless amounting to a
“compromise of the claim or a confession of judgment.” Moore v. Allied
Chemical Corp., 480 F. Supp. 377, 383-84 (E.D. Va. 1979). Therefore, this
issue was waived and we do not address it.

The plaintiffs also argue on appeal that certain exhibits used during
Zimmerman’s testimony should not have been admitted because they were not
previously disclosed in violation of RSA 516:29-b, II(c) (Supp. 2006). RSA
516:29-b, II(c) requires that any exhibits used by experts must be disclosed in
their expert report, unless “otherwise stipulated or directed by the court.”

The plaintiffs objected to the admission of the exhibits at trial, arguing

that they were not “part of the expert disclosure.” The trial court admitted the
exhibits. The defendants argue that RSA 516:29-b was not specifically raised
below and cannot be raised for the first time on appeal. Although RSA 516:29-
b was not specifically cited by the plaintiffs during their objection, the
disclosure issue was specifically raised and addressed by the trial court.
Therefore, we hold that the issue was properly preserved below.

We find no unsustainable exercise of discretion regarding the trial court’s

ruling on the disclosure of Zimmerman’s exhibits. During oral argument,
defense counsel stated that an exhibit list had been provided one month before
trial, in accordance with the trial court’s previous scheduling order. The
exhibits themselves were disclosed approximately two weeks before
Zimmerman took the stand.

Although RSA 516:29-b, II may contain additional requirements

regarding exhibit disclosure, these requirements are qualified by the phrase
“[e]xcept as otherwise stipulated or directed by the court.” Therefore, the trial

7
court was permitted to exercise its discretion and impose different
requirements. We find that the trial court engaged in a sustainable exercise of
discretion in overruling the plaintiffs’ objection and permitting admission of
Zimmerman’s exhibits.

Affirmed.

DALIANIS, DUGGAN and GALWAY, JJ., concurred.